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Source link: http://archive.mises.org/17319/optimal-patent-and-copyright-term-length/

Optimal Patent and Copyright Term Length

June 16, 2011 by

Currently patents last about 17 years, and copyright about 100 years. Originally both were about 14 years, equal to two 7-year apprentice terms. ((See my post Where did the patent term come from?; also C. Michael White, “Why a Seventeen Year Patent,” 38 J. Pat. Off. Soc’y 839 (1956) (describing the historical basis for the seventeen-year patent term).)) As noted by Michele Boldrin & David Levine,

In 1976, the term of copyright, which since 1909 had been 28 years plus a renewal term of 28 years, was increased to the life of the author plus 50 years. … Since the Sony Bono Copyright Term Extension Act of 1998, copyright protection in the U.S. is life of the author plus 70 years, or 90 years for works without an author. If we take the remaining life of an author to be roughly 35 years, this would mean 105 years of protection. ((Michele Boldrin & David K. Levine, “Market Size and Intellectual Property Protection,” International Economic Review, Vol. 50, Issue 3, pp. 855-881 (August 2009).))

There have been attempts to estimate what the “optimal” terms should be, assuming patent and copyright do promote some innovation and creativity, and based on mainstreamish utilitarian assumptions. They are all much shorter than current terms–yet the longer terms still persist (thanks, Mickey Mouse). For example, Rufus Pollock, in Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, concludes that a 15 year copyright term is “optimal”–i.e., about 85 years shorter than the present system. Boldrin and Levine, the authors of Against Intellectual Monopoly, performed a detailed, careful econometric analysis in 2009 and concluded that the “optimal” copyright term ought to be about 2 years, and patents about 5 to 10 years. ((Boldrin & Levine, “Market Size and Intellectual Property Protection.”)) I say “optimal” in scare quotes because Boldrin and Levine’s conclusion is based on the assumption that patent and copyright are beneficial–an assumption Boldrin and Levine reject, so that their actual view is that the optimal term should be zero–that is, that we ought to abolish patent and copyright. As Levine explained in an email to me about this paper (my emphasis added):

These results assume that without IP a smaller fraction of the social surplus is recovered by the inventor/creator than with IP–that is the sense in which we assume that copyright and patent have some benevolent effect. That is, we assume that IP actually increases innovation. What we ignore is the downstream effect of IP–that future innovation/creation is reduced due to existing rights. We also ignore the fact that the producers who count–the marginal ones–are not especially likely to benefit from IP. In practice I suspect that those two are the main reasons that empirically IP just doesn’t increase creation/innovation. Of course our calculation ignores any other social costs of IP other than the standard economic loss due to monopoly power.

And yes: I think the optimal IP term is zero. I wouldn’t argue that a perfectly benevolent government (however improbable that might be) with really really good information (adding improbability to improbability) couldn’t make some small social improvement by occasionally awarding a monopoly for some particularly important and costly invention/creation. But leaving those improbabilities aside, the critical problem is if you concede an inch the lobbyists will soon occupy the entire tent. The only safe thing is an out and out clear cut prohibition on IP.

Other studies also indicate a need for shorter IP terms. In “Why a Seventeen Year Patent,” 38 J. Pat. Off. Soc’y 839 (1956), C. Michael White describes the historical basis for the seventeen-year patent term and proposes shortened terms. Merges & Nelson, in “On the Complex Economics of Patent Scope,” pp. 868–70,  argue that most economic models of patent scope and duration focus on the relation between breadth, duration, and incentives to innovate, without giving serious consideration to the social costs of greater duration and breadth in the form of retarded subsequent improvement. ((See also Jonathan Barnett,  Cultivating the Genetic Commons, observing that “There is little determinative empirical evidence to settle theoretical speculation over the optimal scope and duration of patent protection.” Citing D.J. Wright, “Optimal patent breadth and length with costly imitation,” 17 Intl. J. Industrial Org. 419, 426 (1999).))

The bottom line is that even arguments with pro-IP assumptions imply that the patent term should be cut in half and the copyright term slashed by at least 85 years (Amazon CEO Jeff Bezos favors reducing some patent terms to 3–5 years). ((An Open Letter From Jeff Bezos On The Subject Of Patents (March 2000).)) This is one reason I have argued that any serious IP reform should include first and foremost a significant reduction in the patent and copyright terms. ((See my article Reducing the Cost of IP Law.)) Unfortunately, IP reform efforts never reduce patent and copyright terms, which is one reason I have argued that these reform efforts are not serious or radical at all. ((See my articles and posts ; Patent Reform is Here! O Joy!; Prior User Rights and Patent Reform; “Reducing the Cost of IP Law“; “Radical Patent Reform Is Not on the Way.”))

[C4SIF cross-post]

{ 42 comments }

Andras June 16, 2011 at 11:30 am

Now we are talking. However, there should be sunset clauses with the changes to prevent cannibalization.
Another thing: why should all patent terms be the same? Patents in IT and pharma are absolutely different.

Wildberry June 16, 2011 at 11:51 am

Stephan, nice article.

Unless one is for total abolition of IP or the First Amendment, the optimal term must be between zero and infinity.

In the “zero” camp are total abolitionists, like you and Levine, and in the infinity camp are those well organized, well funded, special interests who understand exactly how they will benefit from longer terms; (I thank both Mickey Mouse and Sonny Bono). I have mentioned previously the legislative bias of special interests that is in the final analysis, just another way of describing mercantilism.

In this regard, IP is no different than other manifestations of mercantilism; a fundamentally sound principle (one should own what he produces), is hijacked by special interests and extended and expanded in order to achieve some economic goal through political means. While the means are theoretically available to all, the deck is stacked in favor of the special interests, owing to the nature of man and the political systems we have created. Those who will benefit from a legislative initiative now are not strongly opposed by those who will not feel and likely don’t understand the immediate impact of the change.

One question is, “What is the proper “Libertarian” response to mercantilism?”

One possible response is to eliminate political means altogether; this is the Ancap position. Another is continued growth of the commercial/government symbiosis until we finally reach a state of serfdom, in Hayek’s terms the ultimate destination of mercantilism, or fascism in its most evil form.

To suggest these are the only alternatives however is a false dichotomy.

Between anarchy and domination by tyrants lie the open fields of liberty. While burning the State down or letting it rot from within, may be in the mind of some, two paths to the same destination, what of those like myself who hold the view that no solution is final, and freedom is a process if continual vigilance, not a destination?

As I have recently said, IP is a great vehicle for illuminating these types of questions. When you ask what the optimum term length of IP might be, your answer and approach illuminates both the process and the destination you have in mind.

While I hold a position favorable to the principle of IP, I can at the same time oppose mercantilism, and approach the question from a position best described as the economics of law. Term length is not an ethical or natural rights issue, but an issue of defining an economic policy that is likely to produce the desired outcome, and legal doctrine that supports that policy. Economics is in fact, a utilitarian enterprise.

As such, free market theory demands that producers own what they produce, and are left free to trade with others that perceive those products as having value. Freedom of speech, association, and the alienability of property demand policies which protect against legislative erosion of those freedoms. It is a problem of balance and requires both empiricism and value judgments, neither of which are an exact science.

There is at least one study I am aware of (2001 U.S. Briefs 618; Eldred v. Ashcroft) which argues that the current copyright term is financially equivalent to a perpetual term:

Taken as a whole, it is highly unlikely that the economic benefits from copyright extension under the CTEA outweigh the additional costs. Moreover, in the case of term extension for existing works, the sizable increase in cost is not balanced to any significant degree by an improvement in incentives for creating new works. Considering the criterion of consumer welfare instead of efficiency leads to the same conclusion, with the alteration that the CTEA’s large transfer of resources from consumers to copyright holders is an additional factor that reduces consumer welfare.

This is wrong and counter to a good policy balance between the competing objectives of IP law. Copyright terms, and perhaps patents as well, should be shortened.

sweatervest June 17, 2011 at 8:53 am

“Unless one is for total abolition of IP or the First Amendment, the optimal term must be between zero and infinity.”

The first amendment!? What in the world does this have to do with the first amendment?

“a fundamentally sound principle (one should own what he produces)”

From wikipedia (which itself is from cited sources):

“Mercantilism is the economic doctrine that says government control of foreign trade is of paramount importance for ensuring the prosperity and security of a state.”

So government control of foreign land equals getting able to own what you produce!?

“is hijacked by special interests and extended and expanded in order to achieve some economic goal through political means”

That’s what mercantilism is and has always been. Where in the world did you get that mercantilism has anything to do with owning what you produce?

“One question is, “What is the proper “Libertarian” response to mercantilism?””

To reject it entirely and consistently as an attack on private property rights and as the historical means to subjugate the Americas under European colonization. Mercantilism is what states do to enrich themselves. What do you think libertarians say and have always said about mercantilism?

“One possible response is to eliminate political means altogether; this is the Ancap position”

No, the ancap position is to always regard political means as unjust and destructive to society. The only way to destroy political means is with political means, which defeats the whole purpose.

“Between anarchy and domination by tyrants lie the open fields of liberty”

What is your basis for this? How does one have more freedom under a restrained state than under no state?

“what of those like myself who hold the view that no solution is final”

Who said ancap is the “final” solution to anything?

“and freedom is a process if continual vigilance, not a destination?”

Who said freedom is a destination?

Trust me Wildberry, you just don’t get ancap at all.

“Term length is not an ethical or natural rights issue, but an issue of defining an economic policy that is likely to produce the desired outcome”

Yes, it is not an ethical or natural rights issue. The reason is because ethics establishes any IP as unethical and not contained in any natural right. That you don’t seem at all to be bothered by that is concerning to say the least.

Beyond that, an outcome desired by whom? You? Anyone who speaks of “the” desired outcome is being a dictator.

“Economics is in fact, a utilitarian enterprise.”

NO!! Economics is a value-free science. It is beyond the scope of economics to ask whether one economic policy is “better” than another. The only thing economics can do is describe *what* certain economic policies, or lack thereof, will cause, and cannot possibly shed light on which one is “better” than the other.

Economics is not utilitarian at all. Where did you get this? Mises was a utilitarian through his advocacy of free markets, but that is not economics: that was what he called “liberalism”, and he explained over and over that it cannot count as a proof of the supremacy of markets, it is only his opinion and it is one he expected many to share. He believed that merely correcting the errors of economic analysis of the past (i.e. Marx) would turn most people, desiring wealth as they often do, into market advocates. It is not part of economics to be an advocate of anything. The purpose of economics is to describe what happens in certain situations, not to attach a value to those situations (especially considering that economics is precisely the science that establishes that such evaluations are specific to individual actors).

Human Action isn’t filled up with reasons why the market is “good”. It is filled up with rigorous descriptions of what a market is and what it does.

It is extremely frustrating that you will not accept that and continue to post confusing and erroneous remarks like the one above. Economics is a value-free science, and every single one of the Austrian economists support that. Economics is not utilitarian, anymore than physics is. The purpose of economics is to describe what happens under various modes of production, not to establish one as “better” than another one.

Besides, even under your utilitarian approach you would still be led to adopt zero as the optimal position because, as has been explained *over and over*, IP leads to less innovation and creative production and the production of creative work can be maximized by eliminating IP altogether.

Also, all of your arguments here are categorically the same ones used to defend public goods like roads. See Hoppe, “Economics and Ethics of Private Property”, Chapter 1.

“It is a problem of balance and requires both empiricism and value judgments”

First of all, you just rejected the entire Austrian framework (economics as an a priori theory of human action that does *not* require empiricism). Second of all, whose value judgements matter? According to my value judgments IP is a horrible beast of legislature gotten completely out of hand that is, as mentioned in a later blog post, being used as a means to shut down the internet. Why does your value judgment count more than mine?

“neither of which are an exact science.”

YES!! Your approach to this is non-scientific, non-rigorous and based on an emotional litmus test. That you choose to be so unscientific in your approach is certainly not a proof that a scientific approach is impossible.

Economics and ethics are both precise and rigorous sciences based on the method axiomatic deduction from incontestable a priori axioms. The one thing that separates Austrian economists from the rest is that they conceive of economics this way, not an empirical hypothetical endeavor, and certainly not a matter of value judgments. Whether you want to accept it or not, you are launching an attack on economics as a science, particularly Austrian economics.

“This is wrong and counter to a good policy balance between the competing objectives of IP law. Copyright terms, and perhaps patents as well, should be shortened.”

Why should you expect this doctrine to change as you shorten those terms? I am not suggesting that as a proof of my position, but the whole point of the blog post is that those terms should be shortened, and once they are shortened a little, the exact same analysis as presented by the study will still apply and they should be shortened even more, etc. until they are shortened all the way, to zero.

Wildberry, people at the LvMI might be giving you such a hard time because you are launching an attack on the very thing the institute exists to promote, which is Austrian economics: economics as an a priori science of human action. You desperately need to read “Theory and History” by Mises.

Wildberry June 17, 2011 at 12:29 pm

@sweatervest June 17, 2011 at 8:53 am

Because you seem to have calmed down a bit, I’ll give you some time.

The first amendment!? What in the world does this have to do with the first amendment?

Ahem. I’m resisting the temptation towards sarcasm. I hope you appreciate that.

The validity of the “ideas are free” argument derives from freedom of speech guarantees. If ideas were not free, then free speech would be curtailed, violating the First Amendment.

My definition of mercantilism is the collaboration of special interests (primarily commercial enterprises) and government to gain economic advantage through political means. In exchange, government gains means to stay in power. It is anti-free market and anti-liberty.

That’s what mercantilism is and has always been. Where in the world did you get that mercantilism has anything to do with owning what you produce?

You answered your own question below:

To reject it entirely and consistently as an attack on private property rights

”Between anarchy and domination by tyrants lie the open fields of liberty”

What is your basis for this? How does one have more freedom under a restrained state than under no state?

I thought this was rather poetic, didn’t you? The choice between anarchy and totalitarianism is a false dichotomy.

Who said ancap is the “final” solution to anything?

Good. We agree on this point.

Trust me Wildberry, you just don’t get ancap at all.

The last time I listened to someone who said “Trust me”, I bought a lemon. Live and learn.

Yes, it is not an ethical or natural rights issue. The reason is because ethics establishes any IP as unethical and not contained in any natural right. That you don’t seem at all to be bothered by that is concerning to say the least.

You just don’t seem to get that ethics, like property, is a human device. All ethical principles are debatable. Some people may hold that certain inalienable rights are self evident. That is merely a basis for cooperation among those who agree.

Beyond that, an outcome desired by whom? You? Anyone who speaks of “the” desired outcome is being a dictator.

Watch out, your youth is showing. People who wish to cooperate may speak of desired outcomes they hold in common without being dictators.

Mises was a utilitarian through his advocacy of free markets

Let’s start there. If we say that markets SHOULD be free, I suppose we have to work out what that means, and why that should be so, and what economic policies move us towards and not away from that objective. I believe Mises said somewhere (no time for research today) that the field of economics helps us understand if a given economic policy will actually produce what we intend. This was a major theme underlying his analysis of socialism as a set of economic policies.

If it didn’t matter that we distinguish between what is good and not so good, we should all be happy with communism, and economic calculation would be meaningless.

Economics is a value-free science</blockquote

Praxeology is a value free approach to economic study. Economic policy is a value statement. Economic theory is helpful in understanding if that policy will produce the desired outcomes.

YES!! Your approach to this is non-scientific, non-rigorous and based on an emotional litmus test. That you choose to be so unscientific in your approach is certainly not a proof that a scientific approach is impossible.

While I have utmost respect and considerable exposure to the scientific method, if that was all that was required in life, the only thing we should learn is mathematics. It seems you sort of lean that way. Empirical science, as Mises observed, has limitations.

the exact same analysis as presented by the study will still apply and they should be shortened even more, etc. until they are shortened all the way, to zero.

I thought you were somewhat of a mathematician? Continually cutting something in half only approaches zero, but never arrives there. You are assuming, of course, that the shorter the better, yet you have no rational basis for saying how short is enough except you believe zero is right. I don’t. To see the effects of a shortened term, we can look to zero for the effect. The result of zero is undesirable, for the many reasons I have previously stated. It violates the principles of private property and means of production. Infinite is wrong because it eventually causes all knowledge to be privatized, which is an anti-liberty policy. Somewhere in between is “right”, in my opinion.

Wildberry, people at the LvMI might be giving you such a hard time because you are launching an attack on the very thing the institute exists to promote, which is Austrian economics: economics as an a priori science of human action. You desperately need to read “Theory and History” by Mises.

I read every day. So much to learn, so little time. As to the hard time that some people give me, I’ll leave it to others to observe what those people have in common.

I am here because of AET. My confidence in that is pretty solid. What you and perhaps others seem to not understand is that it is possible to debate how those same principles of AET play out within the context of a particular form of economic activity, like IP. That is the only reason I am interested in IP debates; as a vehicle for understanding the economics of law in relation to AET.

But I am not a full-time scholar on the subject like some. Despite what opinions you may have formed about me, I have considerable humility about that fact.

Cheers.

sweatervest June 17, 2011 at 2:32 pm

“Because you seem to have calmed down a bit, I’ll give you some time.”

You can’t give me time, you can either confront my arguments or cower away from them.

Besides, masquerading my argumentative force with being worked up is a pretty convenient way to “win” any argument by ending it. And you were obviously worked up because you complained about me being arrogant and have said that you are fed up with me and are going to ignore me. I’m not the one that got upset.

“Ahem. I’m resisting the temptation towards sarcasm. I hope you appreciate that.”

Typing out “I’m resisting sarcasm” is one the most smart ass things I have ever seen. Do you honestly consider yourself an un-provoking victim of some intellectual choir (or ideologues as you often name me)?

“The validity of the “ideas are free” argument derives from freedom of speech guarantees”

No it doesn’t. That ideas are free is due to the fact they are non-rivalrous. Besides, “freedom of speech” is metaphorical nonsense. One never has a “right to speak” when they are on someone else’s property, and their right to speak on their own property is contained in their property rights. It’s also ridiculous to think any government can “guarantee” my right to anything.

That air is free does not come from the Bill of Rights.

“My definition of mercantilism is the collaboration of special interests (primarily commercial enterprises) and government to gain economic advantage through political means. In exchange, government gains means to stay in power. It is anti-free market and anti-liberty.”

But you said it is based on sound principles.

“I thought this was rather poetic, didn’t you”

Poetry isn’t truth. Be as beautiful as you want, it’s still wrong.

“The choice between anarchy and totalitarianism is a false dichotomy.”

Who presented it as such? The point is that anarchy is the best choice out of all of them, all of the middle points included. Anarchy is better than a little government. That is the claim. The dichotomy is a straw man. People straw man ancap because there are no actual arguments against it.

“Good. We agree on this point”

What a bunch of semantic trickery. You are the one that presented ancaps as thinking ancap is a final solution! Obviously you do not agree that ancaps never presented it as such.

“The last time I listened to someone who said “Trust me”, I bought a lemon. Live and learn.”

Well forgive me for being slightly poetic in my wording. Let me be as drily logical as I typically am: You don’t understand ancap and have no basis for explaining what its proponents believe, as evidenced by your incorrect interpretation of Rothbard’s arguments concerning what to do about past property trespasses.

“You just don’t seem to get that ethics, like property, is a human device”

I explained this in painstaking detail in the last thread and instead of responding to any of it, you ignored all of it and instead went on some childish tantrum about how arrogant I am. I posted paragraphs and paragraphs and paragraphs.

*You did not respond to a single bit of it*. Your response all of a sudden changed the topic to what it means for something to be a human device to what kind of personality I have.

You did the exact same thing when I explained *in detail* why rights are *not* inalienable. Your response was “yeah huh, no wonder you’re confused”.

“All ethical principles are debatable”

Meta-arguing. You never actually debate them, you just say they are debatable and go right back to holding onto your own without supporting them.

“Some people may hold that certain inalienable rights are self evident. That is merely a basis for cooperation among those who agree.”

Reality is not a matter of agreement. People do not agree on what the preconditions to cooperative problem solving are. Whether they are “self-evident” or not is as irrelevant as whether Russell’s Paradox is self-evident. I’ll say this as many times as you express confusion over it: people choose whether or not to trespass on peoples’ rights. They don’t choose what is a trespass and what is not.

“Watch out, your youth is showing”

My youth is irrelevant. Your insistence to turn everything into ad hominem is the biggest reason I lose patience and turn super-sarcastic with you. You need to learn how to stay on topic and quit switching to a discussion about my personality.

“People who wish to cooperate may speak of desired outcomes they hold in common without being dictators.”

Assuming of course such a desired outcome is held in common. Either way, your desired outcome is not held by me and you expect me to follow IP laws so this is completely irrelevant. We’re not dealing with things we agree on, in case you haven’t noticed.

Ethics is not about agreement. Ethics is about ways to resolve conflicts. Where there is agreement, there is no conflict! If everyone agreed then there would be no problem and none of us would be here debating each other on what to do!

If everyone agreed to obey property rights then what would be the purpose of any of this? Besides, need I agree with you when I build a fence and literally stop you from being able to get onto my property?

“If we say that markets SHOULD be free”

This is an ethics statement. You are not dealing in ethics. As every single Austrian explains, any “should” statement is beyond the scope of economics.

“I believe Mises said somewhere (no time for research today) that the field of economics helps us understand if a given economic policy will actually produce what we intend”

That is exactly my whole point. It explains what happens, not what should happen.

“This was a major theme underlying his analysis of socialism as a set of economic policies.”

Yes. He believed it was meaningless to say socialism is bad or wrong. He just wanted to make sure people correctly understood what it entailed, which is mass poverty. No value judgements what-so-ever.

“Praxeology is a value free approach to economic study”

Praxeology is economics. Again you are tearing apart Austrian economics. Have you ever read Human Action?

“Economic policy is a value statement”

Economic policy is not economics, it’s legislature. A lawmaker does not advance economic theory when he proposes or enforces a policy.

Either way, you are the only one concerned with economic policy. I really don’t see how that is so hard to grasp. I am not advocating an economic policy. I am advocating the lack of any policy at all, and pointing out that the lack of policy entails a lack of IP (quite distinct from a lack of policy entailing a lack of property, which is quite wrong. A lack of policy allows property to flourish). I’m certainly not suggesting that a new law should be made that “outlaws copyrights” or anything like that. My point is they have no means of survival without a policy, and being the ancap I am, I only advocate the total lack of economic policy. The real question of course is why I advocate what I advocate, not simply what I advocate.

“While I have utmost respect and considerable exposure to the scientific method”

You were completely wrong in your description of a “fudge factor” and so I have no reason to believe this. Besides, scientists talk about the “scientific method” far less than anyone else does. I really hope you don’t think all scientists actually go by some five step procedure in everything they do. Physics is a bit more sophisticated than that (i.e. how do you use a lab procedure to figure out how to build a physics lab?).

“if that was all that was required in life, the only thing we should learn is mathematics”

Why in the world is that? That is ridiculous. You didn’t support it with anything.

Mises uses logical deduction from axioms in Human Action. He emphasizes that over and over all throughout the epistemology sections near the beginning. That is how he presented his diminishing marginal utility theorem. He certainly did not base that on observations.

“Empirical science, as Mises observed, has limitations.”

Mathematics is not an empirical science! How do you observe that every subset of the real number line bounded above has a least upper bound? Mathematics is not based on experience.

Beyond that, the whole point of Human Action and Austrian economics in general is that economics is a “pure science of human action”. That’s what praxeology is. Praxeology is *NOT* an empirical science. It is a logical deduction starting with incontestable a priori axioms. No experience necessary. More on that in “Theory and History”.

You are taking Mises way out of context there. His point in saying empirical science is limited is that it is off limits to any economic theories! To do economics you must do science in a fundamentally different way (methodological dualism).

“Continually cutting something in half only approaches zero, but never arrives there”

I understand the concept of limits. And this is an oversimplification. If you do it an infinite number of times you will get to zero, which explains how you can cut the distance between yourself and the wall across the room in half over and over and actually get there eventually.

“You are assuming, of course, that the shorter the better, yet you have no rational basis for saying how short is enough except you believe zero is right”

I literally said that. My point is that you have no rational basis for thinking it is greater than zero (my rational basis for thinking it is zero has been presented in other places).

“The result of zero is undesirable, for the many reasons I have previously stated. It violates the principles of private property and means of production”

This is simply wrong. If you’re not gonna explain why it’s right, I don’t have to explain why it is wrong, though Peter and I have many times.

“Infinite is wrong because it eventually causes all knowledge to be privatized, which is an anti-liberty policy”

How is total privatization anti-liberty? According to ancaps a free society is precisely one in which everything is owned privately (obviously restricted to that which can be conceivably owned). In fact, by speaking of “private knowledge” as the endpoint of IP you throw away your entire case for IP not being about owning ideas.

“As to the hard time that some people give me, I’ll leave it to others to observe what those people have in common”

They’re all Austrian economists well-familiar with the Austrian intellectual tradition. Welcome to the Mises Institute!

“I am here because of AET. My confidence in that is pretty solid”

Well, do you know what AET is really about? It really sounds like you don’t.

“What you and perhaps others seem to not understand is that it is possible to debate how those same principles of AET play out within the context of a particular form of economic activity, like IP”

I understand that such an analysis demonstrates only that IP interferes with production of creative work, resulting in less of it and redistributes those productive efforts to other places. I also know that it is beyond the scope of economics to advocate one of those as being better. It is also beyond the scope of economics to establish whether IP is rooted in actually existing property rights or involves spurious unjustified claims to property. And no, I don’t think the ethics of the problem is worthy of being ignored.

I have done substantial economic analyses, particularly where I describe how a functioning creative market would have the manufacturers of entertainment hardware paying creative people to continue creating new material in order to make their hardware valuable enough to sell for a profit. I have also done an economic analysis of IP, explaining, for example, that the mechanism by which music copyrights make it harder to be a successful musician is that people must pay larger amounts for albums and therefore buy less albums and listen to (and discover) less artists.

“That is the only reason I am interested in IP debates; as a vehicle for understanding the economics of law”

The economics of law, like any economics, cannot shed light at all on whether or not those laws are justified. If you simply don’t care that laws are justified then that is a serious problem. Questioning whether they are justified or not (or arguing to either effect) is one thing (a crucial thing. It would be disastrous to be mistaken on what is justified and not). Saying “who cares” or worse yet “that’s just an opinion” (ethical relativism) is different.

Ethical relativism is monstrous. Mussolini even realized as soon as you conceive of ethics as a “what do you think” situation, then all of the worst tyrants can validate their own feeling that they ought to enforce their tyranny with all their might, and if anyone says, “Doesn’t matter what you think, what you are doing is wrong” they are fundamentally mistaken. Worse yet, if they put a spell over society as all tyrants must, then do we really lose any capacity to call him a tyrant? Is someone only a tyrant when no one wants him to rule (how then, does he rule? He may have force on his side, but no state rules through force, they are not nearly powerful enough)? What if people grudgingly accept? What if they agree simply out of fear of disagreeing?

“But I am not a full-time scholar on the subject like some. Despite what opinions you may have formed about me, I have considerable humility about that fact.”

Wildberry, maybe you should stop and think of the kinds of things you have said to me. I mean, it’s pretty cartoonish to dismiss everything I say simply on the grounds that you think I am arrogant (so what? Arrogance does not imply that I’m wrong). Maybe I have put considerable thought (years) into these problems, and read plenty of literature on the subjects, and feel like I have something important to say (as soon as the words come out of my fingertips they become forever detached from me).

Maybe I’m just trying to explain, for example, why it does not matter that anything is a human device and use math examples as analogies to better illustrate my point because it is easy to grasp what I am saying in the context of math. Maybe I’m really putting a lot of effort into explaining why I think what I think, which is the best testament to humility you could ever get. People who explain their positions fully, all the way down to the epistemological basis, and present as being as bulletproof as they can, are not being arrogant by doing so.

No, what is arrogant is to simply state your position, never explain it or not explain it fully enough that it appears as incontestable, and expect that to be enough. That I have gone through the lengths I have to explain my position to you just shows how eager I am to be criticized (and also that I present it as the only solution even close to viable… that definitely makes it easier to criticize than if I was nihilist about everything). That’s why it is seriously obnoxious to be literally accused of the complete opposite, as though the only choice I have to come across as humble is to agree with what those calling me arrogant think I should agree with.

Wildberry June 17, 2011 at 3:07 pm

Well, it was a good try. I won’t make the same mistake again.

How you can string together so many wrong ideas is a monument to ignorance. You really are a putz.

sweatervest June 17, 2011 at 8:03 pm

Well you don’t seem interesting in anything beyond calling me names. What was wrong with my response?

sweatervest June 17, 2011 at 9:01 pm

“How you can string together so many wrong ideas is a monument to ignorance”

Assuming of course that they are in fact wrong. Are they?

sweatervest June 17, 2011 at 9:02 pm

Also, it seems like you are getting worked up again :)

sweatervest June 17, 2011 at 9:12 pm

Final note:It is a blatant sign of arrogance to call someone a putz and tell him he is wrong and not expect to have to explain yourself at all. You are, apparently, automatically right and have no need to back your claim up. How is that not arrogant? How is that not you suggesting that you have special access to truth which is why you merely need to say what you think and not explain it, or even cite a single example of anything I said that is wrong? How could one be more arrogant that to assume one is automatically right about something?

sweatervest June 17, 2011 at 9:36 pm

“You did the exact same thing when I explained *in detail* why rights are *not* inalienable”

Whoops that was a pretty bad typo! I meant that rights are not *alienable*!

Inquisitor June 16, 2011 at 11:56 am

“But leaving those improbabilities aside, the critical problem is if you concede an inch the lobbyists will soon occupy the entire tent. The only safe thing is an out and out clear cut prohibition on IP.”

A very important point.

David C June 16, 2011 at 1:17 pm

It depends on what they mean by “optimal”. For example, during the industrial revolution, eventually society reached a point where having a mobile and specialized work-force for the factories was far more profitable than the slave plantation system. However, before then it could be argued that many industries gained more profit from owning slaves. Of course, this doesn’t describe what it “optimal” for the slaves.

I believe there is a similar truth regarding IP. With information one can either chose the monetize the control value (like Hollywood), or the service value (like Google). As society moves into the information age, eventually the profit of companies like Google start to exceed industries like Hollywood. That creates a lot of conflicts and strain like trying to extend copyrights to infinity to monetize that control over every person.

Someday the same will happen with patent. Things like 3d printers and nanotechnology, will move creation out of the factories and into the home. At that point, the financial value that industry generates from creation services will exceed the financial value from the creation controls. My bet is that patent cartels will respond like the copyright cartels. Trying to extend patent to infinity, and monetize an endless stream of revenue from creations made in every home. My fear is that unlike copyrights, patents are more physical, invention is easier to physically control, and the violence that results from that will be more real and intrusive. IMHO, patents have a rather genocidal track record with how they limited safety devices in cars, how they limit drugs and medicine, how they controlled AIDS drugs in Africa. I don’t think they are going to end nicely.

Nathan June 16, 2011 at 1:52 pm

It would be interesting to break down “optimal” copyright and patent lengths by industry and type of media. There are some instances where copyright is clearly unnecessary. Consider the traditional newspaper–has anyone ever made a nickel by xeroxing today’s NY Times and selling it for less than the cover price? Of course not; the cost of physically reproducing an entire paper would greatly exceed the sales price. Not to mention the time it would take–you’d have to make thousands of copies in under a day, or else your copies are quite literally “yesterday’s news.”

Or how about paintings? What copyright protection does Picasso need? An original sells for millions. Even a perfectly executed copy isn’t worth more than a few hundred. The value derives from the fact that it’s a Picasso.

Or any media that’s currently given away for free–like broadcast tv or radio? It amazes me when I hear about lawsuits by the NFL against bars showing the Superbowl. It’s broadcast for free! How can you steal something that’s given away!

How about movies or books or albums, where at least 90% of all sales occur within a few months of publication? What possible value is there in ensuring a few nickels of royalties to an author’s grand children 80 years after he first published? Especially compared to the obvious costs of IP.

I could go on, but even if we accept the premise that IP protection is in some way necessary, it doesn’t stand to reason that it’s necessary in every field where it currently exists, nor that it be the same length for every type of media or invention.

Stephan Kinsella June 16, 2011 at 8:38 pm

Of course by the logic of IP it makes no sense to have a one-size fits all rule. And we don’t now–copyrgiht <> patent. and within patents, there are plant patents, which don’t last as long; and you can extend the term of patents for a few years if there is an FDA delay. But sure, it only makes sense that electrical things would have one length, and so on. But ideally it would be per-invention, which is what J. Neil Schulman proposes in his logorights idea–just have some panel of “experts” use “information theory” to figure out how long each patent should last–1.3 years for this one. 26 years for that one. and so on.

this is obviously ridiculous, since there is no objective way to figure this out, and of course, even if there were, you could not trust the state to do it right. As Levine says, “the critical problem is if you concede an inch the lobbyists will soon occupy the entire tent. The only safe thing is an out and out clear cut prohibition on IP.”

So a one-size fits-all rule makes no sense, and a tailored rule is impossible.

sweatervest June 17, 2011 at 9:01 am

“just have some panel of “experts” use “information theory” to figure out how long each patent should last”

That really is ridiculous. Information theory can tell you how many bits are required to express information (i.e. how much space lossless compression can save), not how valuable that information is or even how difficult it was to assemble the information.

Stephan Kinsella June 17, 2011 at 9:59 am

Yep. http://c4sif.org/2011/01/query-for-schulman-on-patents-and-logorights/
http://blog.mises.org/11323/kinsella-v-schulman-on-logorights-and-ip/
http://www.pulpless.com/bp21samp/logorite.html

Schulman:

I
believe the “entropic” paradigm of regarding creation as a
“calculable increase in improbability” is sound within the
context of information theory, where one discusses the “entropy”
of a signal; and, in fact, I’m told there are existing formulas,
used by the Search for Extra-Terrestrial Intelligence (SETI), to
calculate the “improbabilities” of a signal being a “natural”
occurence as opposed to being artifically generated
“information.”

when one speaks of the property boundaries on a logos,
one speaks of the limits of identity, the signal of which is
defined and limited by the principles of information theory, and
the content of such signal which must be defined by each use to
which the information can be put.

In discussing the identity of a logos as a signal, one
discusses its limits and boundaries in terms of the minimum
number of informational bits necessary to identify that logos as
a distinct creation, the resolution of a logos, the threshold of
predictability of that logos as against background noise, and
other criteria commonly used in dealing with information storage
and transmission.
***

One of the objections brought against copyrights and patents
can be dealt with this way: that a person being sued for
infringing on a previous copyright or patent has had the burden
of proof in demonstrating that their story or invention is a
separate and distinct creation from that which they’re accused of
infringing.

Here is precisely a case where information theory provides
answers to definitional problems that previous theories were
unable to deal with.

By using a process of correlation of the information in each
logos, one can find out precisely how much overlap exists between
them.

Only if the correlation is proven by the petitioner to be
significant enough to warrant a charge of copy infringement would
independent creation have to be established as a defense by a
respondent. If the respondent succeeds in demonstrating
independent creation, then the petitioner’s original “creation”
wasn’t inherently improbable, therefore questionable as a unique
creation–and therefore possibly not property at all–for either
of them.
***
As a strict propertarian, I would have to say that the use
of the smallest identifiable part of a logos–that is,
identifiable by an objective process such as correlation–
requires its owner’s consent.
***
But the theory of logorights as presented herein does not
treat logos as being a product of an idea: it is treated simply
in terms of information which is observable in material form.

“Information”–as a term used in information theory–does
not require that which is being dealt with as information to have
meaning or purpose; it need only perform a function. Information
is a mathematical, rather than a teleological, concept.
***
creation means the taking
of something from a state of greater probability to a state of
lesser probability.
***

Now here’s one of the many bizarre parts of this bizarre argument:

Objection Four: What about two or more people who come up
with the same invention or story independently? Who owns the
logos then?

Answer: As I’ve discussed earlier, creation means the taking
of something from a state of greater probability to a state of
lesser probability.

To the extent which a given logos of invention or story can
be produced independently more than once, to that extent the
probability is still great enough to question whether an act of
creation has been performed at all.

So if A and B both independently invent something, then it’s not an act of creation–and “therefore” not subject to “logorights.” Yet earlier he said:

let’s consider creation in thermodynamic terms as
a localized and continuing lowering of entropy.

Entropy is that universal process which takes things from a
state of greater improbabilities to a state of lesser
improbabilities–commonly thought of as the decay of order into
chaos.

Creation–the act of imposing on natural objects a logos not
naturally found–is the act of moving things from a state of
lesser improbabilities to a state of greater improbabilities.

Just b/c A and B both came up with the same idea, does not mean that it’s not creation, by this definition. So what is it, Neil?

Wildberry June 17, 2011 at 10:34 am

Stephan,

I don’t think you grok the reverse entropy concept in this statement:

creation means the taking
of something from a state of greater probability to a state of
lesser probability.

At some level of improbability, the independent invention concept is impossible. If you start from that theoretical point and work backwards, only then can you arrive at level of probility that makes independent invention plausible.

sweatervest June 17, 2011 at 11:20 am

Fundamental misapplication of probability. See my response below. There is no such thing as the “probability” that someone would invent something independently.

Wildberry June 17, 2011 at 10:53 am

Since reverse entropy requires moving something from chaos to order, it must have energy input and design principles. Humans provide that input in both inventions and literary works.

As you well know, in distinguishing copying from independent authorship in copyright controversies, probabilities are an important consideration. Copying, in an infringement case, can be proven in three ways: 1)direct evidence; 2) circumstantial evidence involving ACCESS and SIMILARITY; and 3) striking similarity.

Both 2) and 3) involve an evaluation of the probabilities of independent authorship.
Are you saying that there is just no way to make such a distinction?

Stephan Kinsella June 17, 2011 at 11:03 am

You can make distinctions, but they don’t have relevance for libertarian rights. But my question was specific. In the case of two inventions, both independent of each other–say A and B each invent the lightbulb. JNS insinuates this is evidence that there was no act of creation. Yet earlier he describes creation as “taking of something from a state of greater probability to a state of lesser probability.” A and B’s invention could be a creation in this sense. Yet he says that the fact it was independently invented implies it’s not creation. Seems like a conflict to me.

sweatervest June 17, 2011 at 11:26 am

Similarity does not prove or even suggest dependence. People have designed the exact same characters independently. It may seem “unlikely” but because you are dealing with actors that do not exhibit deterministic regularity it is impossible to speak of either a probability or a likelihood of an action. One is only expressing one’s surprise over the simultaneous creation.

Even likelihoods involving actors, like the likelihood that someone is going to win an election, can only be rigorously stated by citing past known actions, such as citing how much of the people that have already voted in an election voted which way or another. To the extent that it depends on guessing future actions or unknown past actions there is no likelihood to speak of, only the element of surprise. Unless you already know that the person saw the idea already and copied it, there is no way to ascribe a likelihood to him coming up with the idea on his own.

Wildberry June 17, 2011 at 11:37 am

@Stephan Kinsella June 17, 2011 at 11:03 am

You can make distinctions, but they don’t have relevance for libertarian rights.

If the libertarian rights you refer to are private property rights and the right of a producer to own what he produces with his own means, then I beg to differ.

Without any way to distinguish between one act of creation and another, you are right, we would be lost. But we do. I don’t know how JNS proposes doing it, but it is reasonable to suspect there is more than one approach.

For myself, I am reasonably satisfied that existing IP laws have developed a pretty workable system of determing if a given work or invention is protectable under IP law. While not perfect, perhaps, it is far from hopeless.

sweatervest June 17, 2011 at 11:45 am

“If the libertarian rights you refer to are private property rights and the right of a producer to own what he produces with his own means, then I beg to differ.”

The original author does not produce unauthorized copies. The “pirates” do that.

sweatervest June 17, 2011 at 11:46 am

“Without any way to distinguish between one act of creation and another, you are right, we would be lost. But we do”

No you do. And I have another one. And Kinsella has another, and someone else has another. Whose is the one that gets to be the law?

Stephan Kinsella June 17, 2011 at 12:21 pm

Sweatervest: “Similarity does not prove or even suggest dependence.”

And of course, I am leaving aside here the entire monstrous idea that there is something WRONG with learning from others, from emulating, copying, and competing. There is NOTHING WRONG with showing that B’s ideas or products are “based on” things he learned from A’s products or ideas. Society has gone mad to think there is something wrong with this. No offense, Dingleberry.

Wildberry June 17, 2011 at 1:47 pm

@Stephan Kinsella June 17, 2011 at 12:21 pm

There is NOTHING WRONG with showing that B’s ideas or products are “based on” things he learned from A’s products or ideas. Society has gone mad to think there is something wrong with this.

You are right to put “based on” in quotes. Is your postion so tenuous that you have to dismiss the entire definition of the subject matter of copyrights and the fair use doctrine to make it all look horrible enough?

If what you say was true, there would be no value in intellectual works, since, according to you, people are legally prevented from making any productive use of them. (eye roll)

No offense, Dingleberry.

I can’t tell if you are addressing me here, but if you are, I’m touched that you care that I might be offended by your accusatoin that I support a concept of society that thinks “there is something WRONG with learning from others, from emulating, copying, and competing.” I might be, if that is what you were actually saying.

sweatervest June 17, 2011 at 2:57 pm

“Society has gone mad to think there is something wrong with this”

This, I think, is the real core of the issue. Once one is able to shed oneself of finding a “problem” with such an action there is really no substantial reason to hold onto IP.

In arguments that have happened other places, I have successfully convinced people who started off arguing that IP is the only reason that creative works exist, to acknowledge that IP actually reduces creative output. But, they said, that doesn’t matter. Property rights don’t rely on maximizing wealth.

True enough, but then I successfully convince them that there is no such thing as ownership over an idea, what with the non-rivalry and all. But, they said, that doesn’t matter. Then we hit the loaded questions. “Do you really think it is okay for me to just download someone else’s song without his permission? Do you really think it is okay if one guy starts producing based off an invention and a big manufacturing firm starts producing those too and drives him out of business? Do you really think it is okay to use someone else’s logo?”

And of course by this point the answer is a “yes” and then there’s really nowhere to go after that. Any support for IP seems, to me, to be an outgrowth of this general feeling that a person should be able to dictate how his creation is enjoyed by the rest of society, and that it is a matter of concern that a person naturally loses such control as soon as he publishes something.

I see it in other places, and in fact I see it in kids. Little kids get upset that another kid wore the same outfit he wore yesterday, or got the same backpack, or started using the same catch phrase, and shout out a claim that comes out of kids mouths left and right: “you stole my idea!” But beyond that, people grow up and have the feeling that they have a right to control who gets to take a picture of them, or film them, or “use their likeness” or any of that (in public places). They even think they have a right to stop someone else from writing a story about them! I’ll admit I find it as bizarre as you do.

Perhaps after peoples’ privacy implied in their real property rights are violated to no end they can’t help but insist on having these sorts of “rights”. Another problem caused by the state, and here comes the state with the solution!

Stephan Kinsella June 17, 2011 at 3:32 pm

Sweatervest, your entire comment with :

And of course by this point the answer is a “yes” and then there’s really nowhere to go after that. Any support for IP seems, to me, to be an outgrowth of this general feeling that a person should be able to dictate how his creation is enjoyed by the rest of society, and that it is a matter of concern that a person naturally loses such control as soon as he publishes something.

I see it in other places, and in fact I see it in kids. Little kids get upset that another kid wore the same outfit he wore yesterday, or got the same backpack, or started using the same catch phrase, and shout out a claim that comes out of kids mouths left and right: “you stole my idea!” But beyond that, people grow up and have the feeling that they have a right to control who gets to take a picture of them, or film them, or “use their likeness” or any of that (in public places). They even think they have a right to stop someone else from writing a story about them! I’ll admit I find it as bizarre as you do.

–is just superb. Excellent. Hitting nail on head.

CUrious–how/where do you have all these debates? With friends? Co-workers? Could you elaborate?

Wildberry June 17, 2011 at 4:19 pm

Mr. Kinsella;

Can you please interpret this from Sweatervest for me?

Any support for IP seems, to me, to be an outgrowth of this general feeling that a person should be able to dictate how his creation is enjoyed by the rest of society.

If we substitute the word “creation” for “property” (which is the fundamental issue of the IP debate, i.e. if what is “created” is “property” IP = Property) then it would read like this:

“Any support for [property] seems, to me, to be an outgrowth of this general feeling that a person should be able to dictate how his [property] is enjoyed by the rest of society”

Given the concept of private property and the right of exclusive use, wouldn’t this be a libertarian truism? Any objection to the second rendition?

What nail, exactly, does this hit on the head?

sweatervest June 17, 2011 at 8:57 pm

Thanks! I’m glad you enjoyed that.

I am mostly describing the debates I have had with my dad. I have had similar debates with my brother. It seems to usually go that way on these blogs and the LvMI facebook posts as well. They are always with libertarian-leaning people.

“If we substitute the word “creation” for “property””

As I have explained before, the original author does not create unauthorized copies, the pirates do that. Also, the patent violator is the one who creates products based on the invention, not the inventor.

“Given the concept of private property and the right of exclusive use”

But the *whole point* is that exclusive use of real property is the only kind of use there is. The only reason why any owner is able to exclude use of his property is because when someone else uses it he *cannot* use it. That is completely different from the case with ideas. When someone else uses my idea it does not interfere at all with my use of that idea (unless the use is a trespass on my real property). If your use does not affect my use, what possible reason is there for me to be able to restrict use?

“Any objection to the second rendition?”

That is in no way a “second rendition” of what I said, and that is very dishonest arguing. Why not argue with the first rendition, i.e. the one I actually stated? Your statement is an entirely different one concerning an entirely different scenario.

Wildberry June 19, 2011 at 11:47 am

@Stephan Kinsella June 17, 2011 at 11:03 am

JNS insinuates this is evidence that there was no act of creation. Yet earlier he describes creation as “taking of something from a state of greater probability to a state of lesser probability.” A and B’s invention could be a creation in this sense. Yet he says that the fact it was independently invented implies it’s not creation. Seems like a conflict to me.

You seem to make a practice of missing the main point made and focusing your agruments instead upon circumstances which you create; it seems to me this is your insuation, not his. There must be a name for this kind of logical fallacy…

I will not argue from JNS’s theories, that is not my foundation. However, you have to admit he is making a valid point, which I’ve already commented on.

Two people are sitting near the Roman Coliseum in August, writing a story. They both write, simultaneously, “It was a hot day in Rome”. Under copyright law, and perhaps according to JNS, this act is not sufficient to warrant copyright protection. Why?

The answer must be based on some method of explaining why this not protected, while the story that they each complete, is. That is the distinction in question.

From my point of view, they are both theoretically acts of “creation”, but because mere ideas are not the subject matter of copyright, there must be more. And, of course there is.

One way of describing what “more” is, can be argued from a foundation of probabilities. The probability that two people, in the same place and same time, might express a similar, and even an identical “idea” is high. Therefore, the liklihood of simultaneous creation is high, so protection should be low to avoid casting the copyright protections too wide; remember ideas ARE free, and a mere “idea” is not an “expression”, and certainly not a “work”. According to you, thank goodness copyrights does not protect ALL ideas, (as you are apt to lump these three distinctions under the general concept of “ideas”)

Negative entropy, using the thermodynamic model that JNS offers, runs in a direction, from “idea”, to “expression”, to “work”; from low complexity to higher complexity. This act of “rearranging” reality runs counter to the natural tendency towards increasing entropy, or from higher to lower states of complexity, and according to the law of thermodynamics, requires inputs of energy.

As you follow the accumulation of increasing complexity, the liklihood that two independent authors would continue to produce identical stories grows less and less probable. At some level of complexity, say a 300 page novel, the probability is near zero.

Therefore, one could say that such use of probabilty analysis is a methodolgy that can be employed to determine if two independent works are in fact sufficiently similar such that one cannot plausibly exist without access to the other.

This is, as you well know, in fact the approach that copyright laws adopts in determining if a given work is protectable under infringement action, as I summarized above.

I’m sure you actually understand this, but it runs against your general argument that “ideas are free” and that “creation” is not a basis for property rights. Therefore, you find yourself in the curious position of denying the operation of the laws of thermodynamics.

sweatervest June 17, 2011 at 11:16 am

I think I just realized what the misunderstanding underlying all of this is. The probability discussed in information theory is the probability that the information received is false. For example, if I say “my birthday is on some day of the year” then that contains no information because the probability that the statement is false is zero. Saying “My birthday is in July” contains more information, and “My Birthday is July 3″ contains even more information, because the last statement is very likely to be false. Entropy is a measure of unpredictability, and as information becomes more unpredictable its content increases. This is about the unpredictability of the information (i.e. which way a coin toss will go), not the unpredictability of the bitstream, which is exactly as probable as any other bitstream.

This whole thing about the probability of a stream of bits being used to determine whether or not it is meaningful information is totally misunderstanding information theory. Information theory deals only with bitstreams that are representations of information and says nothing about random bitstreams. The probability is the probability that the information received is false, not the probability that the signal contains information.

Furthermore, information entropy has nothing to do with how different two pieces of information are. If I say “My birthday is July 3″ and then say “I tossed this 365-faced die and it landed on side 124″ then those two signals, no matter how they are represented, have exactly the same entropy, because they are both equally likely of being false.

The information entropy of a book will tell you how many bits it takes to store it on a computer. An entirely different book that has no common elements, like plot or characters, may be able to be compressed to exactly the same amount of bits and therefore have the same information entropy. This of course does not help to distinguish between the two books.

“If the respondent succeeds in demonstrating independent creation, then the petitioner’s original “creation” wasn’t inherently improbable”

And this seals it. This is absolutely wrong. The entropy of a piece of information has nothing to do with how likely it is for someone to think of it. And this is quite silly. The idea of “independent creation”, that someone thought of something without hearing it somewhere else first, is a well-understood concept. Schulman is completely redefining the concept of “creation” here to mean something patently different, i.e. it simply does not matter if you thought of something before hearing it anywhere else, you still did not “independently create it” because it would take too many bits to represent that information!?

I think I understand what Schulman is saying, and it represents a very common misapplication of probability that is precisely the content of Mises’ discussion of probability in Human Action. The “likelihood” that someone would come up with an idea himself is a matter of case probability. It has nothing to do with the expected frequency of people in an entire class coming up with that idea. That is a matter of class probability, and since the class involves actors no one could ever ascribe a probability to such a problem. There is no such thing as the frequentist probability that one actor will come up with an idea , and thus there is no way to speak of the probability that two actors will simultaneously create that idea. There are only likelihoods and those are a function of what and how much knowledge the predictor has. The entropy of the information certainly has nothing to do with either.

Information entropy is not about the improbability of a piece of information, and it gives insight into how likely it would be that many people simultaneous create it independently. Independent creation already means something.

sweatervest June 17, 2011 at 11:42 am

Correction: there are no likelihoods concerning future or unknown actions either. To speak of likelihoods or probabilities of actions is to deny the ability to act: to choose autonomously rather than being constrained by probabilistic determinism.

Wildberry June 17, 2011 at 11:23 am

@Stephan Kinsella June 16, 2011 at 8:38 pm

So a one-size fits-all rule makes no sense, and a tailored rule is impossible.

You do love the false dichotomy!

In every area of the law we tailor rules, so what is the problem with being consistent?

Let’s forget the State for just one second, since it is not necessary to the fundamental point.

Are you saying that it is impossible in general to tailor a rule to fit the circumstances of the facts?

If that was actually the case, we would have to either have one rule for homicide, or abolish the crime altogether. Oddly, we have degrees of murder and manslaughter and various defenses, etc.

So you are saying that the only way to deal with homicide is to abolish the entire principle, just to be safe? You know, to keep the politicians out of the tent?

sweatervest June 17, 2011 at 11:27 am

One again presenting positive law to support positive law. Also confusing rights transferred through contracts with the rights themselves that must exist to contract at all. Also confusing how to deal with property rights violations with how to define what is a violation and not.

sweatervest June 17, 2011 at 11:38 am

For example, there are various degrees of murder and manslaughter, pertaining to the sentences for the crime. There are not various degrees of property rights in one’s body.

Jamess June 16, 2011 at 5:02 pm

Assuming the totally removing patents is politically unachievable, what would happen if a patent includes a “price” that the product will be sold at (whether that official price reflects the actual price is immaterial). If anyone sells a similar product above that set price, there are no legal problems (only marketability problems if someone is selling a similar product for a more expensive price, assuming that the official “price” is the actual price).

Similarly, if someone can sell the product at significantly cheaper rate (say at less than 50% of the official price) there are no legal problems.

The offical price would automatically reduce by, say, 10% a year (to reflect refining in the manufacturing process and giving an incentive to reduce the actual price or allow competition).

This would mean that the company that invents a product has a domineering position provided they are reasonably competitive and also keep reducing costs. Politically this should be possible as you are arguing that for medicine, for instance, a patent is ineffective if another company can produce the same product for half the price.

Nuke Gray June 16, 2011 at 7:48 pm

Here’s another fun point to toss about regarding copyright- all these new medical breakthroughs seem to mean we might be able to live for hundreds of years! Will copyright become (effectively) infinite?

Daniel June 16, 2011 at 10:24 pm

You’re assuming existing copyrights aren’t and won’t stall increases in longevity :(

Nuke Gray June 17, 2011 at 12:18 am

YOU are confusing copyrights and patents- they are not identical!

Daniel June 17, 2011 at 4:08 am

My bad

D:

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